As a pre-condition, our prior approval is required when providing ABWOR in certain proceedings – regulation 13 of the Advice and Assistance (ABWOR)(Scotland) Regulations 2003.
We are prepared to reconsider any refusal if you can provide further information.
You must obtain our prior approval to provide ABWOR for proceedings before the Employment Tribunal, First Tier Tribunal for Scotland, First-tier Tribunal and the Upper Tribunal, with the exception of immigration and asylum proceedings before either Tribunal. The tests are either an effective participation test or an interests of justice test.
When assessing the effective participation test we need to be satisfied that the tribunal deciding the case will do so sitting in Scotland and:
The factors we have to take into account in considering whether the case is too complex include:
Interests of Justice
When assessing the interests of justice test we need to be satisfied that the tribunal deciding the case will do so sitting in Scotland; and
In all the circumstances of the case it is:
The factors to be taken into account in determining whether the interests of justice test is met include:
We may take other additional factors into account. In any request for approval, you should address these issues in appropriate detail
Special provisions: aid type, registration, and financial eligibility
Although the ABWOR available is criminal ABWOR, there is a special provision if you are registered to provide criminal, civil or children’s legal assistance. You may undertake the work if your client approaches you seeking to oppose the order and the above circumstances apply.
Additionally, if you are not on these registers you can still do this work, and should contact us to obtain authorisation to provide ABWOR in these cases.
In cases where you intend to provide representation, you should make an ABWOR application and select the ORD category. No financial details will be required. You will simply need to answer the effective participation questions.
Prior approval required: factors you should address
There is no financial eligibility test and no liability for a contribution from your client, but you must obtain our prior approval before providing ABWOR. In considering whether to grant approval we are required to apply an effective participation test, to satisfy us that:
The factors to be taken into account in determining this include:
Availability of advice and assistance where ABWOR is not approved
If for any reason ABWOR is not available in terms of the above arrangements or the application is refused, standard advice and assistance may still be made available to your client if they are financially eligible.
In these circumstances, your client would be need to be assessed for financial eligibility on the standard basis, and may similarly be liable for a contribution.
Again, ORD should be used in all applications for recovery proceedings.
Initial limit of authorised expenditure for these cases
Where it has been determined that your client could not be expected to participate effectively in the proceedings without representation, ABWOR for recovery proceedings is subject to an initial limit of expenditure £150.00.
Advice and assistance for recovery proceedings would be subject to an initial limit of £35.00.